Executive Summary: On February 19, 2019, New Jersey Governor Phil Murphy signed into law legislation that significantly expands an employee's right to unpaid and paid leave under New Jersey's existing Family Leave Act ("NJFLA"), Temporary Disability Benefits Law ("NJTDL"), and Security and Financial Empowerment Act ("SAFE Act"). These amendments will have a significant effect upon employers in New Jersey, who should review their current policies and procedures immediately to ensure compliance.
Background: New Jersey provides a number of protections to employees in the form of unpaid and paid leaves of absence. The NJFLA gives employees up to 12 weeks of unpaid protected leave in a 24-month period for qualified reasons, including to bond with a "child" or to care for the serious illness, injury or health condition of a "family member." The NJTDL provides partial wage replacement benefits to those qualified individuals who: (i) suffer from their own injury or disability (including pregnancy) ("temporary disability leave benefits") or (ii) need to bond with a "child" or care for the serious illness, injury or health condition of a "family member" ("family temporary disability leave benefits"). For most employers, these paid benefits are administered by the state and funded through payroll contributions. Finally, the SAFE Act provides unpaid leave for employees who are the victims of domestic violence or assault, or have a family member who is a victim.
The Amendments: The new legislation signed by Governor Murphy on February 19 expands protections under these laws, most significantly as follows:
- Covered Employers: Effective June 30, 2019, the NJFLA will apply to employers with 30 or more employees, thereby bringing more small employers into the law's purview. Currently, the NJFLA only applies to employers with 50 or more employees, which is similar to the federal FMLA.
- "Family Member" and "Child" Expanded: Effective immediately, the law amends the definition of "family member" to include "parent-in-law, sibling, grandparent, grandchild," "any other individual related by blood to the employee," and "any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship." The law also adds that an employee may take leave in connection with the placement of a child into foster care with the employee, or when a child becomes the child of the employee pursuant to a "valid written agreement" between the employee and a gestational carrier.
- Intermittent Leave: Effective immediately, the amendment permits employees to use intermittent leave upon the birth, adoption or foster care placement of a "child." Previously, intermittent leave was only permitted with the employer's approval.
- Reduced Schedule: Under the prior law, employees were permitted to take leave on a reduced leave schedule for up to a maximum of 24 consecutive weeks. Effective immediately, the amendment increases this to up to a maximum of 12 consecutive months.
- Notice Requirement: For intermittent leave requests, the law reduces the employee's obligation to provide advance notice from 30 days to 15 days effective immediately.
- Family Member: For purposes of family temporary disability leave benefits ("FLI"), the amendment immediately expands the definition of family member to include those categories of individuals listed above in the NJFLA amendments.
- Benefit Amounts: Effective July 1, 2020, the law: (i) increases the benefit period from six weeks to 12 weeks in a 12-month period for FLI; (ii) increases the maximum intermittent leave period from 42 days to 56 days for FLI; and (iii) increases the maximum benefits payable to eligible employees from $650 per week to $860 per week for FLI and for the employee's own illness or disability.
- Use of PTO or other Employer-Paid Benefits: Previously, the law permitted employers to require employees to use up to two weeks of existing PTO, vacation or other employer-paid leave benefits in lieu of FLI. The amendment now prohibits this action, and allows only the employee to elect whether to use PTO or other similar benefits. Furthermore, under the law, an employee's use of PTO or similar benefits will not reduce the amount of state FLI benefits available to the employee.
- Anti-Retaliation: The law creates a new provision stating that employers may not discharge, harass, threaten or otherwise discriminate or retaliate against an employee who requests paid benefits pursuant to the NJTDL – whether for FLI benefits, or for the employee's own illness or disability. Specifically, employers may not refuse to reinstate an employee after a period of leave. This anti-retaliation provision also permits individuals to sue for alleged violations and provides for monetary damages, attorneys' fees and costs, and injunctive relief if the individual is successful.
- Private Plans: The amendments also modified certain requirements for employers who utilize private plans to fund benefits pursuant to the NJTDL in lieu of the state-run program.
- Family Member: Effective immediately, the amendment expands "family member" to include those categories of individuals listed above in the NJFLA amendments.
- Eligibility for NJFTD Benefits: The amendment permits individuals eligible for leave under the SAFE Act to seek wage replacement benefits from the state pursuant to the NJTDL.
- Use of PTO or other Employer-Paid Benefits: Previously, the law permitted employers to require employees to use existing PTO, vacation or other employer-paid leave benefits for SAFE Act purposes. The amendment now prohibits this action, and allows only the employee to elect whether to use PTO or other similar benefits while on leave under the SAFE Act.
Bottom Line for Employers: Employers should review their current policies and procedures to ensure compliance with the expanded protections and benefits provided by these amendments. Since some of these amendments are effective immediately, employers should take action as soon as possible to ensure compliance.
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